Exhibit 10.5
CLIENT AGREEMENT
XxxxxxxxXxxxxxxxxxx.xxx, LLC
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As of December 13, 2000
Xxxxx Xxxxx, Chief Operating Officer
Essential Reality, LLC
000 Xxxx 00xx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Dear Xx. Xxxxx:
This letter agreement (the "Letter Agreement") affirms our mutual understanding
regarding the business relationship between Essential Reality, LLC ("Client")
and XxxxxxxxXxxxxxxxxxx.xxx, LLC ("xx.xxx").
The parties agree that the parameters of xx.xxx's services and obligations to
Client are described more fully below and that the general terms governing this
Letter Agreement are described more fully on Attachment A hereto.
xx.xxx shall use commercially reasonable efforts to introduce Client to certain
business relationships of xx.xxx as shall be mutually determined by Client and
xx.xxx ("Prospect(s)"), for the purpose of facilitating, joint ventures,
strategic alliances, partnerships and/or any revenue generating business
opportunity or relationships, including licensing arrangements and/or other
transactions ("Transaction(s)") with Client.
The parties further agree that xx.xxx's compensation for its efforts on behalf
of Client shall be (i) a non-refundable monthly retainer of $6,000 USD
("Retainer") paid to xx.xxx upon the execution of this Letter Agreement and
continuing until either party shall notify the other, by at least thirty (30)
days notice, in advance, in writing, of its intention to terminate this
Agreement; and (ii) for any Transaction(s) consummated with any of the Companies
xx.xxx shall receive such other compensation as shall determined by mutual
agreement; PROVIDED, HOWEVER, that the parties hereto agree that the services to
be provided by xx.xxx hereunder are valuable and integral to the growth and
development of the Client and that xx.xxx's provision of the services called for
hereunder constitute services substantially different in form and substance than
traditional consulting services and as such xx.xxx shall not be compensated in
form or amount as would a traditional consultant providing services appearing to
be similar to the services to be performed by xx.xxx hereunder. Furthermore, the
parties hereby agree that the form of compensation to xx.xxx for the provision
of the services contemplated hereunder shall be in the form of cash, equity in
the Client or a combination of both, to be determined by mutual agreement by the
parties and Client and xx.xxx hereby agree that Client shall not enter into any
Transaction unless and until Client and xx.xxx negotiate in good faith the terms
of a written agreement which sets forth xx.xxx's compensation resulting from
such Transaction. If the parties cannot agree on the terms of xx.xxx's
compensation, the compensation shall be determined by arbitration pursuant to
the provisions of Section 8 of Attachment A, with the arbitrators determining
xx.xxx's compensation based upon the fair market value of the services provided
and the benefit received by Client; PROVIDED, HOWEVER, that xx.xxx shall also be
entitled to reimbursement of all fees in such arbitration and a 20% premium on
its compensation if the Client elects to proceed with such Transaction before a
written agreement is reached with xx.xxx on its compensation.
Client shall keep xx.xxx informed and provide xx.xxx with any and all
information, notices and updates regarding its ongoing negotiations,
discussions, meetings, relationships and current and future dealings and/or
arrangements relating to or arising from the services provided by xx.xxx
hereunder, including without limitation, the consummation of any contract,
agreement, deal, transaction, partnership, alliance or other contractual
relationship resulting from or relating to such services.
64
The parties further agree, that this Letter Agreement contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof, and shall only apply to the introductions and/or related services
enumerated herein ("xx.xxx Services"). Any other introductions or related
services, whether in addition to or in replacement of any of the xx.xxx
Services, shall be negotiated and agreed to by the parties prior to any such
introduction or related service, and the terms of such introductions or related
services, including, without limitation, the compensation arrangement, shall be
set forth on an Annex 1 ("Annex 1") which shall be attached to and become part
of this Letter Agreement. Furthermore, any transaction, whether with an entity
specified herein or with any other entity that xx.xxx introduces to or
identifies to the Client, which is other than a Transaction(s) as contemplated
herein, including any and all business combinations (such transactions, an
"Other Transaction"), shall be negotiated in good faith or agreed to by the
parties prior to the consummation of any such Other Transaction and the terms of
such Other Transaction and the services associated therewith, including, without
limitation, xx.xxx's compensation therefore, shall be set forth on such Annex 1
which shall be attached to and become part of this Letter Agreement. The terms
and provisions of this Letter Agreement, including, without limitation, the
arbitration provisions of Section 8 of Attachment A, shall govern any such new
introductions or related services, as well as the compensation arrangements,
agreed to and listed on Annex 1 in the event the parties can not agree on
xx.xxx's compensation; PROVIDED, HOWEVER, that xx.xxx shall also be entitled to
reimbursement of all fees in such arbitration and a 20% premium on its
compensation if the Client elects to proceed with such Transaction before a
written agreement is reached with xx.xxx on its compensation.
Either party shall have the right to cancel this Letter Agreement at any time
upon 30 days' written notice to the other party. The parties agree, however,
that termination of this Letter Agreement shall not affect any rights of xx.xxx
or obligations by Client that accrue prior to termination or those which survive
termination of this Letter Agreement, including but not limited to those rights
and obligations included in any and all attachments to this Letter Agreement.
The compensation to be earned by xx.xxx for any services performed prior to the
termination of this Letter Agreement shall survive termination of this Letter
Agreement, even if the relationship between the Client and a party to whom
xx.xxx has introduced Client prior to termination of this Letter Agreement is
formalized or otherwise develops within two (2) years subsequent to the
termination of this Letter Agreement.
Your signature below indicates your agreement with the terms and conditions
contained herein. We look forward to working with you.
Very truly yours,
XxxxxxxxXxxxxxxxxxx.xxx, LLC
By:
-------------------------------
Xxxxxxx Xxxxxx
President & CEO
Agreed to and Accepted:
Essential Reality, LLC
By:
---------------------------------
Name:
Title:
65
ATTACHMENT "A"
GENERAL PROVISIONS
1. INDEPENDENT CONTRACTOR. xx.xxx and Client acknowledge that they are
independent contractors and that no employer/employee or joint venture
relationship is created by the Letter Agreement. Other than xx.xxx acting as
Client's representative in respect of the services described on this Attachment
A to the Letter Agreement, xx.xxx does not have any right to act on behalf of
Client or to represent that it has such right or authority, unless expressly
provided by prior written agreement signed by Client and xx.xxx. All services
performed by xx.xxx shall be at such times and in such manner as xx.xxx shall
determine.
2. REPRESENTATIONS AND WARRANTIES. (a) Each party has taken all corporate action
necessary for the authorization, execution and delivery of this Letter Agreement
and this Letter Agreement constitutes the legal, valid and binding obligation of
both parties, enforceable against each other in accordance with its terms except
as enforcement may be limited by any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally and except
as enforcement may be limited by general principles of equity.
(b) Client shall provide xx.xxx with such information about Client as xx.xxx
shall reasonably request. No document, exhibit, schedule, statement, certificate
or other writing furnished to xx.xxx by or on behalf of Client, pursuant to this
Letter Agreement or otherwise, will contain, any untrue statement of a material
fact or will omit to state a material fact necessary to make the statements
contained herein and therein not misleading.
3. INDEMNITY. Client shall indemnify, defend and hold xx.xxx (and its members,
directors, officers, employees, agents, affiliates, controlling parties and
representatives on Client's Board of Directors) harmless from and against all
claims, liability, loss or damage, together with all reasonable costs and
expenses related thereto (including legal and accounting fees and expenses),
arising from the performance of its obligations under this Letter Agreement
other than those resulting from the gross negligence or willful misconduct of
xx.xxx or its representatives.
4. ASSIGNMENT OF RIGHTS. Neither party shall be entitled to assign its rights or
obligations under this Letter Agreement without the express written consent of
the other party; PROVIDED, however, that the rights and obligations of xx.xxx
hereunder may, in whole or in part, be sold, transferred or assigned by xx.xxx
to any parent, subsidiary, affiliated or successor entity.
5. NONSOLICITATION. Client agrees not to solicit or hire any of xx.xxx's
employees or former employees, without xx.xxx's prior written consent, during
the course of this Letter Agreement and for a period of one (1) year thereafter.
6. NON-EXCLUSIVE RELATIONSHIP. (a) The parties acknowledge that this Letter
Agreement does not create an exclusive relationship between them and that xx.xxx
is not precluded from providing similar services to a competitor or potential
competitor of Client and Client is not precluded from retaining a competitor or
potential competitor of xx.xxx to provide Client with similar services.
(b) Client further acknowledges that introductions, strategic relationships
and/or joint ventures facilitated on behalf of Client pursuant to the services
provided under the Letter Agreement may be provided to and on behalf of another
client of xx.xxx and that xx.xxx may be receiving compensation from such other
client as well for the introduction and facilitation of any such relationships.
Client further acknowledges and agrees that in any such event of the provision
of services hereunder involving the Client and another client of xx.xxx, that
xx.xxx shall be deemed to have used its good faith best efforts in facilitating
the subject relationship between both such clients of xx.xxx in a fair manner
and Client shall have no claim against xx.xxx asserting otherwise.
7. PRESS RELEASES; PUBLIC DISCLOSURE. (a) During the term of this agreement,
xx.xxx shall be able to issue press releases and other marketing or other
written materials in respect of xx.xxx's services provided to Client, after
obtaining prior approval from Client. xx.xxx shall send Client a copy of each
communication promptly following release of such information.
(b) xx.xxx may post on their Web site the Client's name (including any logos,
trademarks or other intellectual property) and a description of their business
purpose.
INITIAL:
-------
-------
66
(c) Notwithstanding anything contained herein to the contrary, nothing contained
herein shall be construed as limiting xx.xxx's ability to make use of any
information provided to xx.xxx by Client in connection with carrying out its
services hereunder.
(d) Client agrees that under no circumstances shall it issue any press releases,
make any posting on their Web site(s) or make any communication or otherwise
disseminate any information in any manner whatsoever, that relates, whether
directly or indirectly, to, xx.xxx, any relationship between xx.xxx and Client,
any of the services, introductions or transactions discussed herein or resulting
herefrom, or in any way relating to or arising from the subject matter of this
Letter Agreement, without xx.xxx's prior written consent.
8. ARBITRATION OF ALL DISPUTES. Any controversy or claim arising out of or
relating to this Letter Agreement shall be settled by arbitration in the City of
New York, State of New York, by a panel of three arbitrators, one of whom shall
be appointed by Client, one by xx.xxx and the third of whom shall be appointed
by the first two arbitrators. If the first two arbitrators cannot agree on the
appointment of a third arbitrator, then the third arbitrator shall be appointed
by the American Arbitration Association. The arbitration shall be conducted in
accordance with the American Arbitration Association, except with respect to the
selection of arbitrators which shall be as provided in this Section. The cost of
any arbitration proceeding hereunder shall be borne equally by Client and
xx.xxx; PROVIDED, HOWEVER, that Client and xx.xxx shall be responsible for the
attorneys' fees and expenses of their respective counsel. In the absence of
fraud, the award of the arbitrators shall be binding upon the parties and
judgment thereon may be entered in any court having jurisdiction thereof.
9. ENTIRE LETTER AGREEMENT; AMENDMENT. This Letter Agreement, sets forth the
entire understanding of the parties with respect to the subject matter hereof,
and supersedes all existing agreements between them concerning such subject
matter. No amendment to or modification of this Letter Agreement shall be valid
or binding unless made in writing and signed by the party against whom
enforcement thereof is sought.
10. EXPENSES. Except as otherwise specifically provided in this Letter
Agreement, Client and xx.xxx will bear their own expenses in relation to this
Letter Agreement and the matters contemplated hereby.
11. NOTICE. All notices or other communications required or permitted by this
Letter Agreement shall be in writing and effective when received, and delivery
shall be made personally or by (a) registered or certified mail, return receipt
requested, postage prepaid, or (b) a nationally recognized courier or (c)
confirmed facsimile transmission, addressed to the other party at the address
set forth in this Letter Agreement.
12. WAIVERS. No course of dealing nor any delay on the part of any party hereto
in exercising any rights hereunder shall operate as a waiver of any such rights.
No waiver of any default or breach of this Letter Agreement shall be deemed a
continuing waiver or a waiver of any other breach or default.
13. GOVERNING LAW. This Letter Agreement shall be governed, interpretedand
construed in accordance with the laws of the State of New York without giving
effect to its laws governing the conflicts of laws.
14. INVALIDITY. If any clause, paragraph, section or part of this Letter
Agreement shall be held or declared to be void, invalid or illegal, for any
reason, by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Letter Agreement.
15. COUNTERPARTS. This Letter Agreement may be executed simultaneously in two or
more counterparts, which may be by facsimile, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
16. SURVIVAL. The provisions of Sections 3, 5, 7 and 8 and shall survive the
termination of this Letter Agreement.
INITIAL:
-------
-------
67
AMENDMENT TO THAT CERTAIN LETTER AGREEMENT EXECUTED BY AND BETWEEN
XXXXXXXXXXXXXXXXXXX.XXX, LLC AND ESSENTIAL REALITY, LLC
THIS FIRST AMENDMENT TO CLIENT AGREEMENT (this "Amendment") is
made and entered into as of the 1st day of September, 2001, by and between
ESSENTIAL REALITY, LLC ("Client"), and XXXXXXXXXXXXXXXXXXX.XXX, LLC ("xx.xxx").
BACKGROUND STATEMENT
A. Client and xx.xxx entered into that certain Client
Agreement dated as of December 13, 2000 ("Client Agreement").
B. Client and xx.xxx have now agreed to modify the Client
Agreement and amend it as set forth in this Amendment.
STATEMENT OF AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual
covenants contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Client and xx.xxx
hereby covenant and agree as follows:
1. DEFINED TERMS. Except as otherwise expressly defined in
this Amendment, all capitalized terms herein will have the same meaning herein
as ascribed to such terms in the Client Agreement.
2. RETAINER. The Retainer shall be equal to a monthly retainer
having a current total value of $15,000 USD, payable, in full, in cash,
beginning September 1, 2001 and, thereafter, within fifteen (15) days after the
end of each month.
3. REVENUE SHARE. With respect to any Transaction directly or
indirectly with a Prospect resulting from an introduction by BD during the term
of the Client Agreement (whether or not the Client Agreement has been terminated
prior to the time such Transaction is consummated or entered into), Client shall
pay to BD a fee equal to a percentage of the revenues that Client receives, or
has the right to receive from or as a result of the Transaction ("Gross
Proceeds"), payable in the form of cash and/or warrants, for 3 years from the
date Client receives it's first payment of such Gross Proceeds (such fee, the
"Revenue Share"). The Revenue Share shall be mutually agreed to by BD and Client
prior to the consummation of any Transaction but in no event shall the
percentage of such Revenue Share exceed 4%.
4. EXPENSES. Client hereby agrees that irrespective of any
other compensation agreements reached with xx.xxx, Client shall reimburse xx.xxx
for all expenses incurred by xx.xxx in connection with the performance of its
services pursuant to the Client Agreement which have been previously approved by
Client.
Except as amended hereby, the Client Agreement, including the compensation
arrangements set forth therein not otherwise modified hereby, shall remain in
full force and effect.
IN WITNESS WHEREOF, Client and xx.xxx have executed and
delivered this Amendment as of the day and year first above written.
XXXXXXXXXXXXXXXXXXX.XXX, LLC ESSENTIAL REALITY, LLC
By: By:
------------------------------- ------------------------------------
President & CEO Name:
Date: Title:
Date:
68
